Attorneys argue First Amendment at issue in suit
VENTURA — The legal battle over an 8-year-old’s playhouse is headed for the Supreme Court after lawyers failed to prove a councilman violated the law when he responded to a neighbor’s complaint that the structure was too tall.
The 2nd Appellate District Court ruled in January that City Councilman Ken Genser didn’t violate the city charter when he asked staff to check into the legality of the 12 1/2-foot-tall playhouse.
Genser has maintained that he only asked staff through a pair of e-mails to look into the playhouse, and never directed staffers to take any position on it, which is what David and Beth Levy claim he did in their lawsuit against City Hall.
The Levys sued City Hall in September of 2000 after building inspectors backed out of their decision to allow the playhouse as a legal one-story structure. The reversal came after the Levys’ backyard neighbor, Tundai Garai, complained to then-mayor Genser. The Levys argued that Genser influenced their decision.
The ruling is a victory for City Hall, and for Genser, who said the suit was politically motivated by the Levys’ attorney, Chris Harding. The court also ruled that the Levys will have to pay City Hall’s attorney fees in the case, which span more than three years. It remains unknown how much those fees are and whether or not City Hall will force the Levys to pay them.
“The judge was very clear that this was a lawsuit that did not need to be filed,” Genser said. “In my opinion, Harding filed the suit for two reasons — to try and embarrass me politically, and to try and get the city charter interpreted in such a way that council members cannot discuss issues with city staff.
“He’s trying to make council members less effective.” Harding, a land-use attorney who took the case pro bono, denied that the suit is politically motivated. Rather, it’s an issue about how politicians hold sway over staff, and how citizens are treated by government agencies.
“This is about what a council member can and cannot do,” he said. “I think it goes well beyond the (playhouse)... it is much more fundamental than that.”
After City Hall deemed it legal and David Levy, a psychiatrist who lives in Sunset Park, spent $11,000 to have it meet specifications, the playhouse was in jeopardy of being torn down. As a result, the Levys sued City Hall and the two sides have been embroiled in legal wrangling ever since.
The issue before the three-judge panel was whether Genser violated the law when he communicated with city staff. City law mandates that elected officials not order or request a city employee to carry out any action. The law exists so that city employees don’t feel their jobs are on the line if they fail to comply with an elected official’s request.
The court ruled that Genser is protected under the First Amendment to respond to constituents’ complaints.
“This is a complete victory. This was a politically-motivated lawsuit, one that did not need to be filed. The judge stated that loud and clear.” — — KEN GENSER Santa Monica City Councilman
“Here, the city met its burden to show that the Levys’ action arose from Genser’s and Garai’s constitutionally protected speech,” Judge Arthur Gilbert wrote. “Garai’s act of contacting her representative and Genser’s act of contacting planning staff are petitions for grievances against the government protected by the First Amendment.... The First Amendment protects everyone, even politicians.”
Harding said the court misread the city charter and applied the First Amendment argument too broadly.
“The court didn’t even try to read the city charter,” he said, adding he will file a petition with the State Supreme Court by the end of the month in an attempt to reverse the appellate court’s decision. “The (appellate) court adopted an extreme view of the First Amendment issue.”
Harding said the court missed the fact that the city violated its own laws because Genser allegedly influenced city staff to change their minds and rule the playhouse was two stories, making it illegal under zoning codes. (The first “story” was open — a space under the elevated playhouse).
“Genser had many other options in communicating with city staff,” Harding said. “He could’ve talked to the city manager or he could have agendized it for a city council meeting.”
Genser said the court’s ruling was clear that he didn’t advocate that the playhouse be deemed illegal, but just inquired about it.
“The ruling was that his (Harding’s) interpretation was so narrow that it would be considered advocacy,” Genser said.
The court also ruled that there was no “actual, present controversy” about the playhouse because the City Attorney’s Office informed the Levys that the playhouse could stay and the notices of violation had been rescinded.
But the condition City Hall attached to its rescinding the order is what caused the case to go to court in the first place. City Hall said it would legally treat the playhouse as a “non-conforming use,” under which the city might change its mind again if someone complained, the Levys argued. It wasn’t until the Levys sued that City Hall decided to make the structure legal again, according to their lawsuit.
The appellate court’s decision reverses West Los Angeles Superior Court Judge Cesar Sarimento’s decision to deny the city’s motion to dismiss the case in March 2002. In its attempt to throw the suit out of court, the city filed an anti-SLAPP motion, which is based on a law that prevents people from being punished for exercising their First Amendment rights. It also is designed to protect them when they complain to government officials.
“Strategic Lawsuit Against Public Participation” — also known as SLAPP suits, are meritless lawsuits used mainly by big developers to chill the public’s freedom of speech when speaking out against a project. It’s also used to intimidate them so they will stop complaining.
The appellate court ruled that City Hall is protected under SLAPP and the Levys didn’t demonstrate a probability of prevailing in any of their arguments.
“This is a complete victory,” Genser said. “This was a politically-motivated lawsuit, one that did not need to be filed. The judge stated that loud and clear.”
Originally published in the Santa Monica Daily Press print edition on February 3, 2004. Read the original PDF.